Regulating HIV transmission

Last weekend I flew up to Brisbane for the ‘Risky Business’ forum on HIV criminalisation convened by Queensland Positive People and funded by the HIV Foundation Queensland. It followed on from the ‘Beyond Blame’ pre-conference to AIDS2014 in Melbourne, where I was a rapporteur for the breakout session looking at alternatives to criminal prosecution.

In the still image captured from video taken at Beyond Blame, I’m wearing a look of ‘you’re not going to like what I have to say (but here I am saying it anyway)’.*

That’s because the overwhelming message on HIV criminalisation has been it’s a medical issue that should be managed by public health rather than criminal prosecution.  And my reply was that public health can be just as coercive as criminal law, without the procedural fairness — the ‘right to a fair trial’ — and that this view obscures the way public health and criminal law in fact interact as part of a system for the regulation of HIV transmission.

The five stage National Guidelines for managing people who place others at risk of HIV infection demonstrate the articulation of public health management and criminal sanctions as part of a system of responsive regulation (Ayres & Braithwaite, 1992).

Public health and criminal law form two corners of a regulatory triangle around HIV, the third consisting of the cultures of protected sex and safe injecting in communities affected by HIV, as well as the community-based health promotion that shapes these cultures: what I’m calling, after Mitchell Dean, the social governance of HIV transmission (Dean 2010).

In my PhD, I’m using that framing to help think through the imbrication of stigma in the development and audience reception of social marketing campaigns.  At the Brisbane forum I made four concrete recommendations for people thinking about policy reform around this issue:

1. Improve the procedural fairness of the public health management process.  This is a no-brainer, particularly in Victoria, where the right to a fair trial is part of our Charter of Human Rights and Responsibilities.
2. Improve the quality of engagement between health departments and communities affected by HIV.  I’m using ‘engagement’ in the sense developed by the W3 project: not ‘consumer representation’ but organisational mental models of the diverse needs, identities and experiences that exist in the community.
3. Restrict the use of criminal law to cases where it is clear the transmission of HIV has been used to cause harm — not as a regulatory instrument to deter unsafe sex or intervene in sexual cultures of condomless sex.
4. Strengthen the CBO role in the social governance of HIV transmission.  In particular, this involves raising the awareness of HIV-negative people of their own responsibility to manage risk.

The full analysis and recommendations will appear in a forthcoming article – stay tuned!

Suggested citation

Reeders, D.  “Regulating HIV transmission” in Bad Blood [blog]. 4 March 2016.

* Some would say that’s my usual look.